Benham, C.M. v Comcare

[1990] FCA 289

Re: CHERYL MAY BENHAM
And: COMCARE
No. G18 of 1990
FED No. 289
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal - Tribunal confirmed a determination of a delegate of the Commissioner for Employees Compensation that the respondent not liable to pay compensation - acceptance by Tribunal of medical evidence unfavourable to the applicant - whether appeal on a question of law - whether evidence to support the Tribunal's conclusions - whether error by Tribunal in the application of the onus of proof - whether Tribunal in a claim based on the aggravation of a pre-existing disease erred in not considering whether a claim could otherwise be supported as personal injury arising out of or in the course of the employment - appeal dismissed.

Compensation (Commonwealth Government Employees) Act 1971

HEARING

ADELAIDE

#DATE 15:6:1990

Counsel for the applicant : Mr E.G. Reinboth

Solicitors for the applicant : Stanley and Partners

Counsel for the respondent : Mr P.W. Eriksen

Solicitors for the respondent : Australian Government Solicitor

ORDER

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") which affirmed a determination of a delegate of the Commissioner for Employees Compensation made on 30 March 1987 that the Department of Veterans Affairs ("the Department") is not liable to pay compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act").

1. The applicant commenced employment with the Department on 25 February 1980. She was absent from her employment from 2 November 1982. On 17 November 1982 she claimed compensation for "muscle spasm in (right) side of neck", symptoms of which she alleged had gradually increased since April 1982 and were caused by "performing my usual desk work". Throughout her life the applicant has suffered congenital macular dystrophy which severely impairs her vision. Notwithstanding this difficulty through determination she succeeded with secondary and tertiary education, and had been accepted into the Department under a "special placements scheme". Her duties involved research work, and a substantial amount of reading, including the reading of hand written documents. She alleged that her visual impairment required her to lean forward to read, and that the abnormal posture assumed by her brought on her neck pain.

2. The applicant has not returned to work since 2 November 1982. On 12 July 1983 a delegate of the Commissioner for Employees Compensation determined that she had suffered aggravation of a disease, namely pre-existing disc degeneration of the cervical spine, and that her employment was a contributing factor to that aggravation. The delegate determined that the Department was liable to pay compensation. The applicant was retired from the Commonwealth Public Service on the grounds of invalidity on 20 July 1983. She continued to receive weekly compensation until 30 March 1987 when the determination now under challenge was made. It is common ground that the applicant's entitlement to compensation is governed by the provisions of the Act, even though the Act has now been repealed and replaced by the Commonwealth Employees Rehabilitation and Compensation Act 1988; see sub.s.129(1), para. 124(2)(c) and sub.s.129(2) of that Act, and Willis v. Australian Telecommunications Commission and Anor., a decision of the Administrative Appeals Tribunal dated 23 February 1990, judgment No. 5220B.

3. The determination of 30 March 1987 was founded mainly on the opinion of a neurosurgeon, Mr Carney, dated 6 August, 1986 which in part read :
   

"On examination the most striking anomaly was a gross discrepancy between her neck movements when formally examined and those when she was sitting discussing her case in an animated fashion or dressing and undressing. When formally examined she performed neck movements with exquisite slowness in a jerky hesitant highly contrived and controlled fashion. When not being formally examined she had what in total was a full range of neck movements, performed very smoothly and with no discomfort . . . I thought it was most unlikely that her pain was purely just discogenic or indeed purely organic. The discrepancy in cervical spine movements suggested very strongly that psychological or other factors played a very significant role in her complaint of pain and indeed the whole illness history was most bizarre . . . I consider that it (sic) unlikely that Mrs Benham is suffering in any sense from a work injury or work induced illness unless psychological factors are accepted as being work induced. I think it is highly probable that elements of conscious manipulation play a part in this illness."

1. The applicant applied to have the decision of the delegate reviewed by the Tribunal. After the application was made, pursuant to a direction given by a senior member on 5 December 1988 the matter was remitted to the respondent "for further consideration which consideration is to include the taking into account of psychiatric evidence". Following this direction psychiatric reports were obtained both by the applicant's solicitors and by the respondent. On 18 April 1989 a secondary "initial" determination was made, once again disentitling the applicant to compensation.

2. Upon the hearing of the review the Tribunal received oral evidence from the applicant and her husband, and from five medical practitioners. A substantial number of medical reports, and other information, were tendered. The Tribunal described the matter as one involving complex medical and factual issues. The Tribunal reached the conclusion that the determination of the delegate was correct and should be affirmed.

3. An appeal lies to this Court from the decision of the Tribunal on a question of law: Administrative Appeals Tribunal Act 1975, sub.s.44(1). The primary submission of the respondent is that this appeal is incompetent as it is not an appeal on a question of law. The distinction between a question of fact and a question of law is not always easy to make. The distinction was considered in Lombardo v. Federal Commissioner of Taxation (1979) 28 ALR 574 per Bowen C.J. at pp 575-578, in T.N.T. Skypak International (Aust.) Pty Ltd v. Federal Commissioner of Taxation (1988) 82 ALR 175 per Gummow J. at pp 182-183 and in Rohrlach v. Christianos (1981) 26 SASR 161 per King C.J. at 162-163. The question whether a worker is suffering incapacity as the result of an injury or disease, or an aggravation thereof, caused by or arising out of employment will often involve matters of mixed law and fact. However sometimes where the primary facts are not in dispute the decision may turn solely on a question of law; in other cases where the only point in issue is whether facts have been proved which attract the application of the statute the decision may turn solely on questions of fact. "The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact": Wali Mohammad v. Mohammad Bakhsh (1929) LR 57 Ind App 86 at 92, quoted by Rich A.C.J. in Federal Commissioner of Taxation v. Broken Hill South Limited (1941) 65 CLR 150 at 154. In Lombardo v. Federal Commissioner of Taxation, Bowen C.J. at p 576 with reference to an appeal from a Taxation Board of Review, observed:
   

". . . where application of the statute is clearly a question of fact, a question of law will only arise if there was no evidence to support the conclusion of fact or it is obvious from the transcript of the case that the Board has misunderstood the law in some relevant particular: Edwards (Inspector of Taxes) v. Bairstow

(1956) AC 14 at 33 per Lord Radcliffe."

1. It is necessary to examine the subject matter of the appeal in order to determine whether it can be characterised as one on a question of law. The applicant submits that on examination three questions of law arise. First, it is submitted that there is no evidence to support the conclusion (which the submission acknowledges to be a conclusion of fact) that the applicant was not suffering incapacity for work causally related in a relevant way to her employment. Put another way the submission is that no person acting judicially and properly instructed as to the law could have come to the conclusion reached by the Tribunal, this being a test adopted by Fisher J. in Blackwood Hodge (Australia) Pty Ltd v. Collector of Customs, N.S.W. (No. 2) (1980) 3 ALD 38 at 47. The second and third questions of law which it is submitted arise are said to be obvious on the fact of the Tribunal's reasons for judgment. It is contended that the Tribunal erred in the application of the onus of proof when considering the relationship of the applicant's neck condition to a motor cycle accident in which she was involved on 21 November 1982; and that the Tribunal erroneously confined its consideration to facts pertinent to the application of sub.s.29(1) of the Act whereas it should also have considered whether the evidence would attract the application of s.27 of the Act.

2. The first of these contentions by the applicant was advanced as the primary ground of appeal. In my opinion it must be rejected. Although the evidence before the Tribunal involved complex medical questions relating to the applicant's ongoing complaints of neck pain and disability, the underlying issues were clear. They were identified precisely by counsel for each party during the final addresses and by the Tribunal in its reasons.

3. On the one hand the applicant's case was that a degenerative condition of her cervical spine had been aggravated in 1982 as a result of her employment with the Department. Her symptoms had been continuous thereafter. Upon the evidence of the applicant, her husband, and Drs Brown, Marshall and Goldney, and on the reports of three other doctors, the applicant contended she had a genuine "problem" with her cervical spine. She denied she was malingering. Her counsel presented her case on the basis that it was not important to distinguish between whether the disorder was due to an organic condition, or to psychological factors as there could be a combination of both.

4. On the other hand the respondent's case was that the applicant, at least since 1986, had suffered no organic abnormality in her cervical spine which could account for her symptoms, and relied on the evidence of Mr Carney and Mr Sorby-Adams (an orthopaedic surgeon) to this effect. Further, if the applicant suffered a psychiatric illness, it was contended that it was an inevitable development of her personality, and unrelated in any causal way to her employment.

5. There was evidence in favour of each of these positions and a clear disagreement between the medical witnesses on each topic. The Tribunal in its reasons canvassed the competing medical evidence and reached specific conclusions. It found that there is no organic condition to which the applicant's symptoms could be attributed. A subsidiary question involved conflicting medical opinion whether X-rays show damage at the intervertebral disc spaces in the cervical spine. The Tribunal held that the X-rays disclose "no significant abnormality". In reaching these findings the Tribunal preferred the evidence of Mr Sorby-Adams, which had support from the evidence of Mr Carney.

6. Having found that there was no organic condition which could explain the applicant's continuing complaints of pain and disability, the Tribunal next considered the evidence of the psychiatrists, Dr Goldney and Dr Schembri. Dr Goldney considered the applicant suffered a conversion reaction which had led to a perpetuation of symptoms which originally had an organic basis in the aggravation of the pre-existing disc degeneration in 1982. Dr Schembri on the other hand considered that the applicant was not suffering a conversion reaction. He considered she suffered no psychological illness and that her complaints of pain and disability, and her adoption of an invalid role, could be explained "in terms of the life history of the patient in terms of what she was trying to do, in terms of what she is trying to achieve, in terms of her frustrations and subsequent events. That, to me, is . . . not an illness. That is a process of adjustment, a process of adaption". Dr Schembri considered that the applicant's symptoms, even if genuinely experienced by her, were unrelated to her employment. The Tribunal summarised the two psychiatric opinions thus:
   

"A concise analysis would see that in both the Goldney and Schembri theories there has been a psychological exacerbation and prolongation by the applicant of her perceived pain experience. However, whereas the former attributes such psychological exacerbation to a conversion of her feelings of anxiety and frustration resultant upon conflicts in the work place, the latter sees the condition not as an illness or disease but as a simple adaption of a personality coming to grips with a severely disabling eye condition."

1. The Tribunal preferred the evidence and opinions of Dr Schembri, and held that the applicant was not suffering a psychological illness or disease to which the employment with the Department was a contributing factor.

2. Finally the Tribunal, at paras.59-61 of its reasons, considered a submission which had been made by the applicant's counsel based on the following observations of Bright J. in the Supreme Court of South Australia in Dibbins v. Dibbins (1978) 80 LSJS 165:
   

"This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff. True, the medical specialists, with their skill and experience, can move parts of the body so as to test the range of involuntary movement. They can also, by means of diagnostic aids, detect the presence or perceive the apparent absence of physical abnormalities which might be the cause of claimed symptoms. They can also, with their knowledge of anatomy, give a valuable opinion as to whether claimed symptoms are consistent with each other or with a suggested physical cause. But ultimately we must come back to the symptoms. Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central, not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognize this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.

The Tribunal referred to aspects of the applicant's alleged symptoms which had been described in evidence by both the applicant and her husband, and which, if true, would indicate a severe degree of disability. The Tribunal stated that it was "hard to reconcile" the claimed conditions with the medical evidence, even with that of the doctors who had been called to support the applicant's case; and further that even on Dr Goldney's evidence, which was the evidence most favourable to the applicant on psychiatric issues, it was "irreconcilable that the applicant's abovementioned unique disabilities could occur". The import of the language used by the Tribunal in paras.60 and 61 of its reasons is clear. The Tribunal did not unreservedly accepted the credibility of the applicant and for this reason rejected the submission based on Dibbins v. Dibbins.

1. By the way in which the case was presented, and on the evidence adduced, the Tribunal was required to reach conclusions of fact based on an assessment of witnesses and on an evaluation of the medical opinions. There clearly was evidence which could support the conclusions reached by the Tribunal. This being so no error of law has occurred.

2. The notice of appeal, para.4(c), contends that the Tribunal "failed to give any or adequate weight" to a number of findings of fact which the Tribunal made in the course of its reasons. As expressed, this ground of appeal does not raise any question of law but seeks to canvass matters of fact. In argument however it was contended that the ground of appeal should be understood as complaining that the findings of fact, being relevant matters, were not taken into account by the Tribunal in reaching its conclusion. This contention cannot be accepted. In the course of its reasons the Tribunal has referred to the several matters and made the findings identified in the grounds of appeal. The references by the Tribunal to these matters indicates that the Tribunal did not overlook them. The ground of appeal in para.4(c), however advanced, in reality amounts to a submission that the Tribunal should have preferred the evidence adduced by the applicant. Such a submission raises only a question of fact which cannot be reopened on an appeal to this Court from the Tribunal. In any event, as the Tribunal had the undoubted benefit of seeing and hearing the witnesses a challenge of the kind advanced in para.4(c) is not the kind of submission that is likely to bear fruit even where an appeal on questions of fact is open.

3. I turn to the first of the subsidiary grounds of appeal. One of the factual issues canvassed before the Tribunal was whether the applicant's complaints, and any abnormality evident in X-rays taken in December 1982 and thereafter, could be due to the motor cycle accident in which the applicant was involved on 21 November 1982, shortly after she first claimed compensation. As the applicant was in receipt of compensation pursuant to a determination in her favour immediately before the determination was made on 30 March 1987, the onus of proof of matters which would entitle the respondent to have the earlier determination varied rested on the respondent: Phillips v. The Commonwealth (1964) 110 CLR 347, The Commonwealth v. Muratore (1978) 141 CLR 296. The Tribunal cited the second of these cases and correctly stated that the onus was on the respondent to establish on the balance of probabilities that the appellant had ceased to be rightfully entitled to further payments of compensation. However it is said that in relation to the motor cycle accident, statements made in paras.43 and 60 of the Tribunal's reasons demonstrate that the Tribunal reversed the onus of proof. Paragraph 43 of the reasons form part of the Tribunal's discussion of the evidence on whether there existed an organic condition which would explain the applicant's symptoms, and must be read as relating to that topic. The sentence which I have underlined is the sentence said to demonstrate error. Paragraph 43 reads:
   

"Mrs Benham's disabilities appear to be, indeed, unique - for example, her inability to butter bread or at particular moments her inability to speak - and one would expect that X-rays of a person disabled to that extent would be more indicative of spinal damage. Finally on this point, there appears to be nothing inherently inconsistent in the evidence of Drs Marshall and Brown to dispell the suggestion that damage to the applicant's spine at the C4-5, C5-6 and C6-7 levels (as per the Brown report of 9 August 1988) was as a result of the motor cycle accident in which the applicant was involved on the 21st of the month preceding that in which those X-rays were taken. Quite irrespective of that, Dr Sorby-Adams is of the opinion that the spinal irregularities do not pose a significant irregularity. It is an opinion which for my purpose, I adopt."

1. The meaning of the impugned sentence is obscure, but a reference to para.60 of the reasons throws further light on the Tribunal's conclusions concerning the X-rays. It is there said:
   

"The existing back damage in terms of blemishes to the vertebra evidenced by the X-ray diagrams cannot clearly be distinguished as occurring independent of the motor cycle accident that the applicant was involved in three weeks after the beginning of the November 1982 repatriation period."

In my opinion the impugned sentence in para.43 is not a statement which reflects the application of an onus of proof. It is to be understood as a statement, like the statement in para.60, that the evidence does not clearly establish that suggestions of damage evident in the X-rays were unrelated to the motor cycle accident. That is merely an observation about the effect of the evidence. If it were relevant to make a finding about the relationship between what was apparent in the X-rays and the motor cycle accident, and to use that finding as a step in the process of reasoning leading to the resolution of the ultimate question of fact, then a question of onus of proof would arise. For example, had there been a finding that the X-rays showed a significant abnormality, having regard to where the onus of proof lies the respondent would not have established that the abnormality was caused after the applicant ceased work. However as the Tribunal held, in the concluding sentence of para.43, that the X-rays did not disclose any significant abnormality, any possible relationship between whatever was apparent in the X-rays and the motor cycle accident ceased to be a material consideration.

1. In my opinion the Tribunal did not fall into error in the application of the onus of proof in relation to the motor cycle accident on 21 November 1982.

2. The final contention of the applicant alleged a failure by the Tribunal to consider whether the evidence established an entitlement under s.27 of the Act. This submission was only faintly pressed, and in my opinion is without substance. That the Tribunal confined its consideration to the disease provisions in s.29 of the Act is readily understandable. The original determination in favour of the applicant was made under sub.s.29(1) in respect of the aggravation of a disease, namely pre-existing disc degeneration of the cervical spine. And the applicant's case before the Tribunal was based on s.29. Sub-section 27(1) provides:
   

"If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act."

By sub.s.5(1), unless the contrary intention appears, "injury" means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to s.29, does not include a disease or the aggravation, acceleration or recurrence of a disease.

1. The applicant's case as it was developed before the Tribunal depended wholly on the assumption that the applicant had a pre-existing degenerative condition of the cervical spine and that the abnormal posture she assumed whilst reading in the course of her employment aggravated that underlying condition, being a disease of gradual development, so as to entitle the applicant to compensation under s.29. Whilst the extent of that underlying disease was in issue - hence the discussion about the X-rays - the fact that the applicant suffered some degree of degenerative disease in 1982 was not in question. This is not a case where the evidence called for consideration of a possible liability arising independently of s.29 under s.27. The decision of Commonwealth of Australia v. Smith (unreported decision of Von Doussa J. delivered 26 May 1989) to which counsel for the appellant referred is clearly distinguishable. In Smith's case the claim for compensation had been advanced on two quite separate bases, one under s.27 relating to a wrist injury caused by a fall in February 1983, and the other relating to a psychological pain disorder said to be causally connected to events which occurred at work some three years later.

2. For these reasons I consider the appeal must be dismissed.